v v Police HC Wellington CRI-2005-485-17

[2005] NZHC 1317

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2005-485-17

BETWEEN

[M V]

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:         22 March 2005

Appearances: M Dixon for Appellant

M Berridge for Respondent Judgment: 22 March 2005

ORAL JUDGMENT OF GENDALL J

[1]        This is an appeal against a sentence imposed in the District Court at Wellington on 23 November 2004 after the appellant pleaded guilty to a charge of careless driving causing injury. She was fined $400; Court costs $130; disqualified from driving for six months and ordered to pay reparation of $3,923 to the owner of the vehicle of which she struck. The appeal in substance relates to the totality of the monetary penalty imposed, namely $4,453. The facts are unremarkable.

[2]        Mrs [V] was driving a motor vehicle in which her sister was a front-seat passenger. She fell asleep  and  the  vehicle  collided  with  a  stationary  car  in  Lyall Bay, Wellington. Severe damage was caused to both vehicles and the person who was injured requiring hospital treatment was her sister. Reparation of $3,923 was sought on the basis that the owner of the stationary vehicle suffered financial loss, he receiving an insurance payout of $8,300 in respect of his vehicle which he said was valued at $11,500. There was rental car expenses also included.

[M V] V NEW ZEALAND POLICE HC WN CRI-2005-485-17 [22 March 2005]

[3]        The issue relates to one of reparation. The Sentencing Act 2002 provides or contains a presumption in favour of reparation and s12(1) provides that the Court must impose reparation unless it is satisfied that the sentence would result in undue hardship for the offender or the dependants of the offender, or that any other special circumstances exist which make reparation inappropriate. Clearly the Court was lawfully entitled to impose a sentence of reparation. If it considers that that is appropriate it may order the preparation of a reparation report which concerns the financial capacity of the offender, their personal circumstances, family commitments, the maximum amount that she may be able to pay under such a sentence and although a reparation report is not mandatory or a necessary pre- requisite. But the Court of Appeal has observed in R v Quayle (CA39/03, 3 July 2003) at para [22]:

“An obvious purpose of a reparation report is to assess the financial capacity of the offender to pay and whether or not payment, if ordered, should be in a lump sum or by instalments. [So] while not a mandatory requirement, it is unwise for a Judge, in our view, to order reparation without such a report where there is evidence which suggests that the offender may not have the means to make payment.”

[4]        The sentencing Judge is not to be criticised because full information was not before her. The appellant was represented by the Duty Solicitor and it is abundantly clear that her full circumstances were not before the Judge. The appellant is a separated woman aged 47 years with two children earning a very modest amount supplemented by child support from the father one of her children. She has no previous convictions and works as a checkout supervisor at a supermarket.

[5]        I am not satisfied (and the Judge would not have been satisfied had she had the full information before her) that this appellant had the capacity to make the payment of over $4,000 either by lump sum or by instalments from her income. In R v Schulz and Morris (CA174, 176/00, 19 July 2000) the Court also observed that it was preferable, although not mandatory, that circumstances allow that a report be obtained. Once that report is obtained then the Court must determine and specify what conditions it would make in relation to the amount of reparation to be paid and it must specify whether it is to be paid in a lump sum or by instalments. So, in short, reparation orders must clearly indicate what is required of an offender and I refer to R v Belmont (CA345/96, 20 February 1997).

[6]        In the present case the Judge did not have the benefit of a reparation report. That should have been requested by counsel and if he had done so, I have no doubt that the Judge would have ordered that as the prudent course. Secondly, even if the reparation order was appropriate in the circumstances, notwithstanding the absence of a report, the Judge should have indicated the method of payment. It is beyond my comprehension how a separated Samoan woman aged 47 with two dependants and meagre income could be expected to pay in one lump sum, not just the fine but reparation which totals in excess of $4,400. I think the reparation order ought to be quashed and it is.

[7]        In some circumstances the remaining sentence imposed is thereafter adjusted so as to increase a fine or other sentence, as a balancing factor for the quashing of the reparation order. In these circumstances the degree of carelessness was relatively minor. Although obviously careless driving, the injury was to the appellant’s sister and I have the victim impact report on that in which she says she wished to support her sister through the Court’s process and is not angry about what has happened. I think a fine of $400 together with the disqualification period was more than adequate. If there is to be any civil proceedings taken against Mrs [V] or any additional loss over and above that covered by the third party’s insurance then that is a matter for the civil Courts.

[8]        It follows the appeal is allowed. The order for reparation is quashed. In all other respects the fine and disqualification are confirmed.

……………………………….

J W Gendall J

Solicitors:

M Dixon, Wellington for Appellant
Crown Solicitor, Wellington for Respondent